DeLeon v. Colvin

Filing 21

MEMORANDUM DECISION AND ORDER - the decision of the Commissioner is AFFIRMED and this action is DISMISSED in its entirety, with prejudice. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

Case No.:1:16-cv000217-REB

JANET DELEON,
Petitioner,

MEMORANDUM DECISION AND
ORDER

vs.
CAROLYN W. COLVIN, Then-Acting
Commissioner of Social Security
Respondent.

Pending before the Court is Petitioner Janet DeLeon’s Petitioner for Review, seeking
review of the Social Security Administration’s final decision to deny her claim for disability
benefits. See generally Pet. for Review (Docket No. 1). This action is brought pursuant to 42
U.S.C. § 405(g). Having carefully considered the record and otherwise being fully advised, the
Court enters the following Memorandum Decision and Order:
I. ADMINISTRATIVE PROCEEDINGS
On March 13, 2013, Janet DeLeon (“Petitioner”) protectively filed a Title II application
for a period of disability and disability insurance benefits, alleging disability beginning
December 15, 2011. This claim was initially denied on April 24, 2013 and, again, on
reconsideration on July 11, 2013. On July 25, 2013, Petitioner timely filed a Request for
Hearing before an Administrative Law Judge (“ALJ”). On June 16, 2014, ALJ Luke A. Brennan
held a hearing in Boise, Idaho, at which time Petitioner, represented by attorney Angela
Hermosillo, appeared and testified. Impartial vocational expert, Polly A. Peterson, also appeared
and testified during the same June 16, 2014 hearing.

MEMORANDUM DECISION AND ORDER - 1

On September 9, 2014, the ALJ issued a Decision denying Petitioner’s claim, finding that
Petitioner was not disabled within the meaning of the Social Security Act. Petitioner timely
requested review from the Appeals Council on November 7, 2014. On March 23, 2016, the
Appeals Council denied Petitioner’s Request for Review, making the ALJ’s decision the final
decision of the Commissioner of Social Security.
Having exhausted her administrative remedies, Petitioner timely files the instant action,
arguing that:
The decision of the hearing examiner, as affirmed by [the] Appeals Council, was
wrong, not supported by substantial evidence in the record, or contrary to the law and
regulation because: the ALJ’s decision was made against the substantial weight of
the evidence in that he did not consult with the appropriate experts at the time of the
hearing; he did not adequately consider the opinions of the claimant’s treating
providers; he did not request a consultative examination or satisfy his burden to recontact any providers in the presence of any ambiguity or lack of clarity; he did not
adequately consider Plaintiff’s credibility and subjective complaints; he failed to
account for the full impact Plaintiff’s impairment has on her ability to function; he
did not adequately consider all the factors that must be accounted for when
ascertaining a plaintiff’s residual functional capacity; and he also neglected to
adequately consider testimony from the vocational expert that would have yielded
a favorable decision.
Pet. for Review, pp. 2-3 (Docket No. 1). From this, Petitioner’s arguments crystallized into the
following, more specific arguments: (1) the ALJ failed to properly evaluate Petitioner’s
credibility; (2) the ALJ failed to properly evaluate the medical opinion evidence; (3) the
Commissioner failed to establish that there is other work in the national economy that Petitioner
can perform; and (4) the Appeals Council failed to properly evaluate the new evidence which
was submitted in support of Petitioner’s request for review of hearing decision. See Pet.’s Brief,
p. ii (Docket No. 18). Petitioner therefore requests that the Court either reverse the ALJ’s
decision and find that she is entitled to disability benefits or, alternatively, remand the case for
further proceedings and award attorneys’ fees. See Pet. for Review, p. 3 (Docket No. 1).

MEMORANDUM DECISION AND ORDER - 2

II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. 42 U.S.C. § 405(g); Matney ex. rel. Matney v. Sullivan, 981
F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990).
Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42
U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ’s factual
decisions, they must be upheld, even when there is conflicting evidence. Hall v. Sec’y of Health,
Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of Health & Human
Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less
than a preponderance (see Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975);
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)), and “does not mean a large or
considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a whole
to determine whether it contains evidence that would allow a reasonable mind to accept the
conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019.
The ALJ is responsible for determining credibility and resolving conflicts in medical testimony
(see Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving ambiguities (see Vincent ex.
rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)), and drawing inferences
logically flowing from the evidence (see Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.

MEMORANDUM DECISION AND ORDER - 3

1982)). Where the evidence is susceptible to more than one rational interpretation in a disability
proceeding, the reviewing court may not substitute its judgment or interpretation of the record
for that of the ALJ. Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir.
1985).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s
construction of the Social Security Act is entitled to deference if it has a reasonable basis in law.
See id. However, reviewing federal courts “will not rubber-stamp an administrative decision that
is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying
the statute.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
III. DISCUSSION
A.

Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a

sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§
404.1520, 416.920) – or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) – within
the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is
defined as work activity that is both substantial and gainful. “Substantial work activity” is work
activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a),
416.972(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not
a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA,

MEMORANDUM DECISION AND ORDER - 4

disability benefits are denied, regardless of how severe her physical/mental impairments are and
regardless of her age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If
the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ
found that Petitioner has not engaged in substantial gainful activity since December 15, 2011, the
alleged onset date. (AR 20).
The second step requires the ALJ to determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is severe and meets the duration
requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination
of impairments is “severe” within the meaning of the Social Security Act if it significantly limits
an individual’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).
An impairment or combination of impairments is “not severe” when medical and other evidence
establish only a slight abnormality or a combination of slight abnormalities that would have no
more than a minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921.
If the claimant does not have a severe medically determinable impairment or combination of
impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the
ALJ found that Petitioner had the following severe impairment: multiple sclerosis. (AR 20).
The third step requires the ALJ to determine the medical severity of any impairments;
that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
answer is yes, the claimant is considered disabled under the Social Security Act and benefits are
awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor
equal one of the listed impairments, the claimant’s case cannot be resolved at step three and the

MEMORANDUM DECISION AND ORDER - 5

evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner’s above-listed
impairment, while severe, did not meet or medically equal, either singly or in combination, the
criteria established for any of the qualifying impairments. (AR 20-21).
The fourth step of the evaluation process requires the ALJ to determine whether the
claimant’s residual functional capacity (“RFC”) is sufficient for the claimant to perform past
relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s RFC is her
ability to do physical and mental work activities on a sustained basis despite limitations from her
impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual’s past relevant work is
work performed within the last 15 years or 15 years prior to the date that disability must be
established; also, the work must have lasted long enough for the claimant to learn to do the job
and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b),
416.965. Here, the ALJ determined that Petitioner has the RFC to “perform sedentary work as
defined in 20 C.F.R. [§] 404.1567(a).” (AR 21). Specifically, the ALJ determined that
Petitioner:
can lift and carry 20 pounds occasionally and 10 pounds frequently. She can stand
or walk for 2 hours out of an 8-hour workday but can sit for up to 6 hours out of an
8-hour workday. Specifically, the claimant can frequently climb ramps and stairs but
never climb ladders or scaffolds. She can occasionally balance but can frequently
stoop, kneel, crouch, and crawl. She must avoid unprotected heights and moving
machinery. She can occasionally use her left upper extremity for fingering, handling,
or reaching. She can frequently use her right upper dominant extremity for fingering,
handling, and reaching.
(AR 21).
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of her impairments, the burden shifts to the Commissioner to show
that the claimant retains the ability to do alternate work and to demonstrate that such alternate

MEMORANDUM DECISION AND ORDER - 6

work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th
Cir. 1993). If the claimant is able to do other work, she is not disabled; if the claimant is not able
to do other work and meets the duration requirement, she is disabled. Here, the ALJ found that
Petitioner is unable to perform any past relevant work. (AR 24). However, the ALJ further
found that there are jobs that exist in significant numbers in the national economy that Petitioner
can perform, including an out operator. (AR 25). Therefore, based on Petitioner’s age,
education, work experience, and RFC, the ALJ concluded that Petitioner “has not been under a
disability, as defined in the Social Security Act, from December 15, 2011, through the date of
this decision.” (AR 26).
B.

Analysis
1.

Petitioner’s Credibility

The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and for resolving ambiguities. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). Where, as here, the Petitioner has presented evidence of an underlying impairment and
the government does not argue that there is evidence of malingering, the Court reviews the
ALJ’s rejection of her testimony for specific, clear, and convincing reasons. See Burrell v.
Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th
Cir. 2012). As the Ninth Circuit has recognized, this is not an easy requirement to meet because
“the clear and convincing standard is the most demanding required in Social Security cases.”
Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014). However, “the ALJ is not required to
believe every allegation of disabling pain,” otherwise disability benefits “would be available for
the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina, 674 F.3d at 1112.
MEMORANDUM DECISION AND ORDER - 7

In evaluating a claimant’s credibility, the ALJ may engage in “ordinary techniques of
credibility evaluation.” Id. An ALJ may consider factors such as: (1) inconsistencies either in
the claimant’s testimony or between the testimony and the claimant’s conduct; (2) unexplained
or inadequately explained failure to seek treatment or to follow a prescribed course of treatment;
(3) whether the claimant engages in daily activities inconsistent with the alleged symptoms; (4)
the observations of treating and examining physicians and other third parties regarding the
claimant’s symptoms; and (5) functional restrictions caused by the symptoms. See id.
“A finding that a claimant’s testimony is not credible ‘must be sufficiently specific to
allow a reviewing court to conclude the adjudicator rejected the claimant’s testimony on
permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.’”
Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d
341, 345-46 (9th Cir. 1991)). “General findings are insufficient; rather, the ALJ must identify
what testimony is not credible and what evidence undermines the claimant’s complaints.”
Brown-Hunter, 806 F.3d at 493. “Although the ALJ’s analysis need not be extensive, the ALJ
must provide some reasoning” that will allow a reviewing court “to meaningfully determine
whether the ALJ’s conclusions were supported by substantial evidence.” Id. at 495.
Here, the ALJ’s credibility findings are supported by substantial evidence. The
September 9, 2014 Decision articulates specific, clear, and convincing reasons for determining
that Petitioner’s testimony was not entirely credible – particularly given the absence of objective
medical evidence supporting Petitioner’s claims of debilitating limitations, coupled with her
daily activities and arguable refusal to take prescribed medications and use a cane.
To begin, Petitioner claims to be disabled as a result of the symptoms attendant to
multiple sclerosis – namely, nausea, predominantly-left-side numbness/tingling, fatigue, vison

MEMORANDUM DECISION AND ORDER - 8

problems, equilibrium issues, depression, heat intolerance, inability to concentrate, forgetfulness,
sun/heat sensitivity, incontinence, and dexterity issues (with exacerbation of certain of these
symptoms upon the presentation of stressful situations). See, e.g., Pet.’s Brief, pp. 4-7 (Docket
No. 18). To this end, at the June 16, 2014 hearing, Petitioner’s attorney (and the ALJ) invited
Petitioner to discuss the limitations associated with her multiple sclerosis, with Petitioner
testifying in part:
Q:

And how has [the multiple sclerosis diagnosis] affected your life . . . .?

A:

My life has changed pretty drastically since the diagnosis. Some of it for the
good, most of it just learning how to deal with what my life is like now
compared to what it was before. Certain restrictions, certain things that I
can’t do. I can’t go out and be in the sun for th lengths of time. I get run
down really easily. I miss certain things that my kids do.

Q:

How do you feel in the morning when you wake up?

A:

Most mornings, I’m still pretty tired. I don’t sleep very well at nights. It
takes awhile to get myself up and going on a daily basis.

Q:

Do you experience vision problems in the morning?

A:

I’ve had many days where I wake up and my vision in my eye – my left eye
is very blurry and it takes awhile. I hydrate a little bit and it gets a little
better as the day progresses. Once I’m up and moving around.

Q:

And can you tell us about the numbness and tingling. Do you experience that
every day?

A:

I do, I do. Most of the time, my left hand is tingly and numb. In more
stressful cases, whether it’s stress at home or just in general, the left side of
my face gets numb and tingly.

Q:

In your function report, you noted that your left leg sometimes has a mind of
its own. Could you explain that?

A:

It’s kind of what I – I call it dead leg. I have to really focus on it to get it to
work right. When I walk, it just kind of will flop and I have a little bit of
experience with that. My mom had a stroke and she had that dead leg and it

MEMORANDUM DECISION AND ORDER - 9

kind of has a funny look to it. It’s hard to explain without actually seeing it,
but it’s difficult. I have to focus on that quite a bit.
Q:

Has it caused you to fall?

A:

I’m trying to think. I don’t believe that the dead leg has caused me to fall,
no. My equilibrium has, so.

Q:

Do you tire easily?

A:

Yes. Yes, I do.

Q:

Can you explain or describe the tiredness for us?

A:

I have mornings where I will take my kids to school and when I come back,
I will sit down in the chair and notice that three hours has passed by and I
don’t know what I’ve done. I mean, I haven’t done anything, but three hours,
it just goes by and I’ve sat there because I don’t have – I’m too tired to get
up and do anything.

Q:

Have you noticed specific things that make your fatigue worse?

A:

Lack of sleep, stress definitely. Stress is almost unavoidable in life,
especially when you have teenagers, but stress does a lot.

Q:

How are you affected by the heat?

A:

The heat wipes me out. I get really run down if I’m out in the sun for too
long. And like we were talking before this, the heat in the wintertime is
almost more difficult than in the summertime, because in the wintertime, you
can’t just shed your clothes off because the house is – you’re enclosed in the
heat. In the summertime, you can at least wear shorts and a tank top and you
can cool yourself off, but in the heat, everyone else in the house has to stay
warm. I can’t crank it down to next to nothing, so that’s –

Q:

When you find yourself getting really tired, are there things that help you feel
better?

A:

Mostly just rest. I rest – we do have – I have a gazebo in our back yard that
I try to go out and my husband calls it my “inner peace finding,” you know,
I try to go out there and just relax.

Q:

Would you say that you have episodes of depression?

MEMORANDUM DECISION AND ORDER - 10

A:

Definitely, whenever I’m faced with days, whenever I can’t do things that I
normally used to be able to do. You know?

Q:

And how do you feel during those times?

A:

It’s hard to function, to have what it takes to be a mom.

Q:

Would you say that your activity changes during those times?

A:

Definitely, definitely. I don’t want to do anything. I used to be a very social
person and now I avoid it.

Q:

Have you noticed any issues with concentration?

A:

Definitely. There’s simple little things, like he has asked me to do or
something needs to be mailed or whatnot, and I forget. I don’t – I don’t
remember.

Q:

Have you had any issues with your bladder?

A:

I have. That’s probably the most embarrassing one. We’ll be out and all of
a sudden, my bladder just opens up and I’ve had a bladder sling put in to
help, but this was before all of this, but there’s no muscle control to stop that.

Q:

You mentioned that you have some issues with your equilibrium. Can you
explain that a little bit further?

A:

Just little things, like if I’m sitting down for, you know, 20 minutes or so and
I stand up, I get a little dizzy and my equilibrium is off. Just this morning in
the shower washing my hair, I slipped. I luckily caught myself. Anytime I
close my eyes, you know, to rinse my hair, my equilibrium goes kind of –
kind of – it sways, I guess that’s the word I’ll say. Sways from – and if I
bend over and I stand back up, I think my equilibrium, I catch myself getting
dizzy.

Q:

Have you experienced falls?

A:

I’ve only – I think I’ve only fallen a couple of times. Just stumbling after
I’ve stood up. Bend over and I stand up, which – it’s – may I take my
sweater off, please? . . . . I’ve fallen – I got into our boat and I got back out,
just stumbled over my own feet. Luckily, I caught myself before I fell
completely.

Q:

Do you have any difficulty using your hands to grasp objects?

MEMORANDUM DECISION AND ORDER - 11

A:

All the time. Picking up a pen, I drop that. On occasion, makeup. I drop
that all the time. Doing dishes, I’ve dropped a knife. Luckily, it just missed
my foot. Sometimes, the numbness is in both hands. Most generally, it’s just
my left one. I drop things all the time. Things that I shouldn’t drop and
picking up. I was trying to do something the other day. I don’t remember
what. See, that’s another thing: memory.

Q:

Do you have any difficulty opening jars?

A:

Oh, a lot of the time, yes. I have to find my kids or my husband to open jars
or bottles of water because I just don’t have the grip in my hands.

Q:

Do you have difficulty picking things up off the table?

A:

Yes, I do. Just any small things because I just don’t have the sensitivity in
my fingers that I used to.

Q:

Do you have issues with your handwriting?

A:

My handwriting has definitely changed. My signature, some days it looks
like mine and other days, it doesn’t. It doesn’t work the way that it used to.

Q:

And do you have issues with typing?

A:

Yes, and that was one thing, my first diagnoses, I thought, “Well, at least
maybe I could at least type,” and I’ve sat down and tried to do some typing
just after that, and the left hand just doesn’t – I can type, but I can’t be as
consistent as I used to be at times. There’s times when I sit down behind the
computer and think, “I’ll just do some of this and see how things work,” and
they just, they don’t work the way that they used to, definitely.

Q:

Do you feel that you could do activities that require repetitive hand
movements for most of an eight-hour working day?

A:

No, I don’t think I could. Not for –

Q:

Do you have problems with bending or crawling?

A:

Not really.

Q:

Do you do that on a consistent basis?

A:

I bend, I don’t crawl. Bending, picking, bend over to get something.

MEMORANDUM DECISION AND ORDER - 12

Q:

Have you experienced problems with depth perception?

A:

Yes, yes. My depth perception is horrible. I ran into things in our garage
pulling the car in. I just – little things like that, and that’s hard to deal with
because those are the little things that I used to do all the time.

Q:

Do you have any trouble getting dressed or dealing with your personal
hygiene?

A:

Getting dressed is not – I wear mostly stuff that can just slip on and off.
Nothing with buttons or zippers just for that fact. Showering is a chore.
Some weeks, it’s two or three times is all the more that I will shower, which
is not very good.

Q:

You noted in your function report that you’ve had to have your daughters
help you to the bathroom if you were having vision or equilibrium problems.
How often would you estimate that that happens?

A:

It happens a couple of times a month.

Q:

Do you experience headaches?

A:

I do. I have a couple – every week, I have at least two.

Q:

And what do you do when you get a headache?

A:

I just take Ibuprofen and drink lots of water and stay down for a few days or
a little while. I think it just depends on the severity of the headache.

Q:

As far as your housework goes, what household chores are you still able to
do?

A:

I can wipe down the counters. I will do dishes on occasion. I do laundry if
I’m feeling up to it. Those are the kinds of things I try to do. I try to – I want
to stay as normal as I possible can. So, I’m very thankful for my daughters.

Q:

How many hours do you think you spend doing that on a daily basis?

A:

Oh, not even an hour. 30 minutes maybe.

Q:

Do you believe you could do these things eight hours a day, five days a
week?

A:

No.

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Q:

Would you say that you have good days and bad days?

A:

Yes.

Q:

Can you describe a bad day for us?

A:

A bad day would be when I get up and I can’t – my vision is off. My
equilibrium is off. I have no energy to do anything, and so I sit in a chair or
sleep.

Q:

Have you had bad days that have spanned several days in a row?

A:

Yes, I have. It takes a couple of days to get up and going again.

Q:

How often would you say that you’ve had episodes that have lasted more
than one day?

A:

I have that at least once a month, sometimes twice a month.

Q:

How many times have you required hospital treatments for these – for the
exacerbation?

A:

I’ve went twice.

Q:

And what have they done when you’ve had to go into the hospital?

A:

I.V. fluid. The first time, MRI’s, C.T. scans. The second time was the
steroid infusions.

Q:

Are you currently taking medications?

A:

No.

Q:

Have you tried medications in the past?

A:

Yes, I have.

Q:

And what was the reasoning behind why you stopped taking them?

A:

The side effects were considerably worse than what my symptoms were.

Q:

And the frequency of your doctor visits has decreased over time. Can you
explain why that is?

MEMORANDUM DECISION AND ORDER - 14

A:

The doctor had told me at one point that with M.S., you have to just learn to
deal with the symptoms and understand what M.S. is, and I can’t afford to go
in every week whenever I have a new symptom.

Q:

Would you say that you have changed your lifestyle to decrease the
frequency of your symptoms?

A:

Yes, I have tried to eliminate the stress, if possible. Rest, eating, I’ve
changed the way that I eat to try to help with some of my symptoms, which
is – has been beneficial.

Q:

What would you say are the primary reasons that you don’t feel you would
be able to maintain employment?

A:

My inconsistencies in how I feel. I couldn’t be dependable to be at work at
a certain time every day, and just not being dependable, I guess.

Q:

Does increased consistent activity increase the severity of your symptoms?

A:

Yes. . . . .

ALJ:

Ma’am, could you tell me what a typical day is like for you? What do you
do in the morning, say from 8:00 to noon? . . . .

A:

I get up, get dressed, go out and I’ll water my flowers. I come back in and
the rest of the day is just basically sedentary. I’ll sit in the house. I will do
a little bit here and there. I don’t like to sit. I can’t sit. I get stoved up
[phonetic] a little bit if I sit for too long. I’ll pick up a little bit around the
house and it’s just very – I’m not very good with words, I’m sorry.

Q:

Are you – are you watching television? Are you reading a book, doing cross
word puzzles?

A:

Sometimes it’s TV or just music. That’s about it.

Q:

Okay. Who does the grocery shopping in your house?

A:

I will or my oldest daughter will.

Q:

Do you have any social activities that you do or church attendance, anything
that gets you around other people?

A:

We go to church, but that’s it.

Q:

Is that a weekly occurrence?

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A:

Yes.

Q:

How long does church last?

A:

45 minutes.

Q:

Do you have any difficulties sitting there for the 45 minutes?

A:

Well, we’re Catholic so it’s kind of up and down.

Q:

Up and sown? Is that helpful to you or does that aggravate things, up and
down?

A:

Up and down is good. If I sit for too long, I get – like I said, I get stoved up.
My joints hurt.

Q:

Well, let’s talk about that. How long can you sit before you just have to get
up and stretch?

A:

Maybe 20 minutes. . . . .

Q:

How long can you stand, and I’m talking about standing at a – not perfectly
still like you’re at attention, but maybe at a sink or something where you can
sort of shift your weight or take a step to the side. Howe long can you stand
at a place like that before you’ve got to get off your feet?

A:

Only about 10 minutes.

Q:

How much weight could you lift and carry across the room?

A:

Oh, I don’t know. How would I –

Q:

A gallon of milk?

A:

Oh, I could carry a gallon of milk, yeah.

Q:

Could you carry a gallon of milk in each hand?

A:

I don’t think – not in my left hand, no.

Q:

So, just one gallon?

A:

Just – yeah, in my right.

MEMORANDUM DECISION AND ORDER - 16

Q:

So, if a gallon of milk weighs about eight and a half pounds, you think eight
to 10 pounds is your limit?

A:

I guess. That sounds about right.

Q:

Okay. You were talking about dropping things earlier. Do you drop things
both with the right and left hand?

A:

Yes, I do. More consistently with the left, but the right hand, it’s not as bad.
It’s weird. It’s the tips of my fingers that do it. The left hand is generally the
whole hand, but my right hand is getting worse.

Q:

You’re right-handed, correct?

A:

Yes, I am.

Q:

Okay, so how often do you drop things with the right hand as opposed to
with the left hand? That’s what I’m trying to figure out.

A:

Yeah. Definitely not as much with the left hand. I would say – oh,
percentage-wise, it’s not very high compared to the left hand.

Q:

What about your arms? Any difficulty reaching, either overhead or straight
out at should level?

A:

Yes, I do. I get weak, My arm shakes.

Q:

That left arm again?

A:

Yes, yes.

Q:

Is that reaching straight or overhead?

A:

Both.

Q:

What about the right arm?

A:

The right arm is about 50-50. Some days, it’s fine ad other days, it’s not.

Q:

You talked about having some bladder urgency. Yes?

A:

Yes.

Q:

Now, is it frequency or is it urgency or is it both?

MEMORANDUM DECISION AND ORDER - 17

A:

It’s urgency.

Q:

Okay, so when you’ve got to go, you’ve got to go?

A:

Well, it just comes on. It’s not – because I try to go to the bathroom pretty
frequently just to avoid anything.

Q:

Mm-hmm.

A:

But I’ve had times where I was at Costco pumping the gas to the car and I
turned around and it just went – and there was nothing I could do to stop it.

Q:

Okay, so let me ask you this. Because I’m looking, for example, at Exhibit
6F, which is I think the last office note I have from Idaho Sleep and
Neurology. Is that your –

A:

Yes, that’s my neurologist’s office.

Q:

Okay, so this is dated, May 22nd, 2013, and it says that . . . Janet’s current
multiple sclerosis symptom profile includes lightheadedness.” Yes?

A:

Mm-hmm. Yes.

Q:

“Difficulty concentrating.” Yes?

A:

Yes.

Q:

“Imbalance.”

A:

Yes.

Q:

Left lower extremity weakness.”

A:

Yes.

Q:

“She denies cognitive change, sensory change, incontinence, or change in
weakness.” Have you talked to your doctor about that issue?

A:

I have not because the last – what he had said to me at that visit, which
apparently isn’t in his notes, he said, “M.S., you have to learn to deal with
some of these symptoms,” and that was not one that we had discussed, so.

MEMORANDUM DECISION AND ORDER - 18

Q:

Okay. You also talked about loss of balance or equilibrium causing you to
fall. Do you use a can or anything like that?

A:

I have one, but I don’t use it.

Q:

Why not?

A:

I think it’s more – I feel too young to be using a cane.

Q:

And then I had made notes reviewing your file that it looked like you should
avoid cold temperatures, but you’re telling me it’s the other way around.
You need to avoid hot temperatures.

A:

Heat does –

Q:

Or is it both?

A:

Heat does exacerbate me if it’s too much. Cold, in the winter – in the
summertime, it’s good to have the cooler temperature in the house, but in the
– it’s an inner-body kind of an issue that I deal with. If I can keep my core
cool, I do pretty well, where in the wintertime, you’re covered up with a
bunch of clothes, so it’s hard to just strip that off and keep it cool. I don’t –

Q:

Okay. Any treatment other than medication?

A:

I had tried – I’m not on any right now, but I had tried acupuncture.

Q:

Any luck with that?

A:

I felt really well while I was on it. I don’t know, but it was – if it was helping
or it just was relaxing.

Q:

How come you stopped?

A:

Money. A friend of mind was – she was paying for it.

Q:

Okay. And are you doing injections now or what kind of medication?

A:

I’m actually not on any. The side effects to the medication were worse.

Q:

What were –

A:

The last medication that I was on was called Aubagio and both hands up to
my elbow were tingly and numb.

MEMORANDUM DECISION AND ORDER - 19

Q:

So, is that a decision that you and your doctor made together or one that you
came to?

A:

I had informed him that I was going to stop taking it because of that.

Q:

What is your doctor’s name?

A:

Dr. Wade Harris.

Q:

And he’s your neurologist?

A:

Yes.

Q:

Tell me about the exposure to sunlight. Does that aggravate things?

A:

It does, it does. The body temperature, the heat when it goes up like that, the
exacerbation, the symptoms are irritated. My hands get worse. My face, the
numbness comes back even worse –

Q:

Because it elevates your body core temperature?

A:

Yes, yes. . . . .

ATT: You had issues with burning hands?
A:

I have. I burned my thumb a while back. I set my hand down and didn’t –
could not feel the heat of the – the stove, I burned my thumb, and I just
recently burned my hand on the curling iron.

Q:

Right or left hand?

A:

My left hand.

(AR 41-58).
Ultimately, the ALJ ruled “that the claimant’s medically determinable impairment could
reasonably be expected to cause the alleged symptoms,” before concluding that “the claimant’s
statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.” (AR 22). He did so, in part, by
noting that Petitioner’s allegations of debilitating symptoms are inconsistent with her own

MEMORANDUM DECISION AND ORDER - 20

description of daily activity levels. See id. For example, he referenced Petitioner’s April 18,
2013 “Function Report - Adult,” where she indicated that:
•

From the time she wakes up until going to bed, she gets up, takes her kids to
school, comes home, showers, picks up around the house, rests, and fixes
dinner. (AR 181).

•

Her multiple sclerosis does not affect her ability to dress, bathe, care for her
hair, shave, feed herself, or use the toilet. Id.

•

She prepares her own meals daily and performs household chores (laundry
and cleaning dishes) about an hour per week, without the need for any help
or encouragement. (AR 182).1

•

She goes outside everyday and, when “going out,” she drives, and is capable
of driving alone. (AR 183).

•

Once a week for about an hour and a half, she shops for groceries. Id.

•

She is able to pay bills, count change, and use a checkbook/money orders
(though she is “forgetful about some bills). (AR 183-84).

•

She exercises three times per week to the best of her abilities, albeit at a
“much slower pace.” (AR 184).

•

She spends time with others (going to dinner with friends every other month)
and attends church and her kids’ sporting events on a regular basis. Id.2

•

her multiple sclerosis affects walking, talking, memory, completing tasks,
concentration, and following instructions;3 but not lifting, squatting, bending,
standing, reaching, sitting, kneeling, hearing, stair climbing, seeing,
understanding, using hands, or getting along with others. (AR 185).

1

Additionally, Petitioner provided no response to the following question: “If you don’t
do house or yard work, explain why not.” (AR 183).
2

At the same time, Petitioner indicates that she has “had to slow down and do[esn’t]
always go to everything [she] is invited to.” (AR 185).
3

In this respect, Petitioner states: “If I don’t have sufficient rest, I stumble over
words[;] when I talk, I have to keep notes about things that I need to do.” (AR 185).
MEMORANDUM DECISION AND ORDER - 21

•

She can walk, depending on whether her “leg is working right,”4 but doesn’t
need to rest when doing so, she just has to “go slower.” Id.

•

She finishes what she starts (conversations, shores, reading, watching
movies), but, when following directions, gets distracted and has to remind
herself to “check what [she’s] doing.” Id.

•

She gets along well with authority figures. (AR 186).

•

She doesn’t use any walking aids for her multiple sclerosis. Id.

•

She takes medication for her multiple sclerosis, but they don’t cause any side
effects. (AR 187).

See also (AR 199-209) (June 18 2013 “Function Report-Adult,” noting more-or-less similar
capabilities in some areas, but altogether inconsistent entries in other areas). According to the
ALJ, “[t]hese significant activities of daily living certainly do not support the claimant’s
allegations of being precluded from any and all work-related activity.”).
Additionally, the ALJ pointed to incongruities he perceived between Petitioner’s
allegations and the medical evidence in the record. (AR 22-23). For example:
•

In February 2012, Petitioner reported that her symptoms began in October
2011 with numbness in her left cheek, fever, body aches, nasal congestion,
nausea, vomiting, numbness and tingling on the left side of her face, and
visual changes with difficulty focusing. (AR 313). However, an
examination at that time showed that she was alert and oriented; her acuity
and visual fields were intact; she had full strength throughout her body, with
normal tone; her reflexes were normal; and that mild to moderate aerobic
exercise 15-30 minutes five times per week was recommended. (AR 31415); see also (AR 22) (referencing treating source’s emphasis on “importance
of staying mentally, socially, and physically active,” implying that “she was
capable of more”) (citing (AR 337)).

•

Despite Petitioner’s consistent allegations of dizziness, imbalance, and
concentration difficulties, other examinations showed her neurological

4

Petitioner elaborated on this in saying that “[m]y left leg sometimes has what is called a
kind of dead leg where it will just flop a little when I walk.” (AR 187).
MEMORANDUM DECISION AND ORDER - 22

system was generally intact and that she could pay attention. (AR 304, 308,
311, 328, 344, 347, 362, 366, 369).
•

Despite Petitioner’s “dead leg,” and its claimed propensity to “kind of flop,”
on numerous occasions, Petitioner denied “gait instability” and medical staff
observed that she walked with a normal gait. (AR 298, 303-04, 307-08, 311,
313-14, 344, 347, 361-62, 365-66, 369, 371-72).

•

Despite testifying to have fallen, at least as of February 2013, Petitioner
admitted that she had no falls. (AR 298).

•

Petitioner complained that her Rebif injections caused bruising and pain, not
that the side effects were worse than the symptoms of multiple sclerosis.
(AR 303). To be sure, not only did Petitioner twice document that her
medication did cause side effects (see supra), throughout the record, various
medications were frequently discussed with Petitioner and Petitioner
expressed interest in pursuing certain of these medications. (AR 304).

These contradictions with the medical record are relevant considerations in discounting
Petitioner’s credibility. See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th
Cir. 2008); see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding that ALJ may
consider lack of medical evidence but it cannot be the only factor supporting adverse credibility
finding); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective . . .
testimony cannot be rejected on the sole ground that it is not fully corroborated by objective
medical evidence, the medical evidence is till a relevant factor in determining the severity of the
claimant’s symptoms and their disabling effects.”) (citing 20 C.F.R. § 404.1529(c)(2)).
Together, these reasons offer clear and convincing explanations as to why the ALJ did
not find Petitioner’s testimony entirely credible. This is not to say, however, that the Court
conclusively finds Petitioner not to be disabled under the applicable rules and regulations, or that
Petitioner does not suffer from the symptoms of multiple sclerosis; indeed, as expected,
Petitioner identifies conflicting evidence in support of her position. While such conflicting
evidence may not have been given the weight Petitioner would have preferred, the ALJ’s
MEMORANDUM DECISION AND ORDER - 23

decision to doubt Petitioner’s credibility in denying disability benefits contains clear and
convincing reasons for doing so. As required by controlling law, the ALJ will not be secondguessed as to such conclusions, on the record here and the justifications provided. See Batson v.
Comm’r of Soc. Sec. Admin., 359 F.3d 1190 (9th Cir. 2004) (“[T]he Commissioner’s findings are
upheld if supported by inferences reasonably drawn from the record, and if evidence exists to
support more than one rational interpretation, we must defer to the Commissioner’s decision.”)
(internal citations omitted). Therefore, the Court will not substitute its judgment when the
evidence in the record can support the ALJ’s findings.5
2.

Petitioner’s Treating Physicians’ Opinions

The medical opinion of a treating physician is entitled to special consideration and
weight. See Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989). Such deference is warranted
because the treating physician “is employed to cure and has a greater opportunity to know and
observe the individual.” Id. However, a treating physician’s opinion is not necessarily
conclusive. See id. at 762. If the treating physician’s opinions are not contradicted by another
doctor, they may be rejected only for clear and convincing reasons. See Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1995). Even if the treating physician’s opinions are contradicted by
another doctor, they can only be rejected if the ALJ provides specific and legitimate reasons
supported by substantial evidence in the record. See id. A lack of objective medical findings,

5

The ALJ’s reliance on the fact that Petitioner stopped working in December 2008
(before her alleged onset date) to care for her mother in support of his credibility determination
is not convincing and not entitled to deference. (AR 22). Petitioner admitted that, even though
she stopped working to care for her mother in 2008, she believed her multiple sclerosis became
severe enough to keep her from working on December 15, 2011 (her onset date). (AR 168).
Standing alone, this sequence of events is perfectly reasonable, and does not operate to detract
from Petitioner’s credibility. Even so, as discussed, the record does supply other reasons to
support the ALJ’s credibility determination. See supra.
MEMORANDUM DECISION AND ORDER - 24

treatment notes, and rationale to support a treating physician’s opinions is a sufficient reason for
rejecting that opinion. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
Petitioner argues that the ALJ failed to properly evaluate the medical opinion evidence,
in particular, the opinions of her treating neurologist, Dr. Wade Harris. See Pet.’s Brief, p. 13
(Docket No. 18). As to those opinions, in a September 30, 2013 “Multiple Sclerosis Medical
Source Statement,” Dr. Harris reported Petitioner’s prognosis as “good/fair,” alongside
Petitioner’s symptoms, including chronic fatigue, balance problems, paresthesias, weakness,
intention tremor, blurred vison, difficulty remembering, sensitivity to heat, unstable walking,
muscle fatigue of limb, vertigo, double vision, emotional liability, and numbness. (AR 396).6
Dr. Harris also reported that Petitioner had significant reproducible fatigue of motor function
with strength testing; she has a need for a cane to address her muscle weakness and imbalance;
she can frequently lift and carry less than 10 pounds, and occasionally carry 10 pounds; she can
occasionally twist, stoop, and crouch; her upper extremities are somewhat limited due to pain,
muscle weakness, tremors, and fatigue; she can grasp 90% of the time and finger 75% of the
time with her right hand/fingers (with no limitations reaching), but is limited to grasping and
fingering only 5% of the time with her left hand/fingers (and can reach 90% of the time); and she
is likely to be “off task” more tan 25% of the time. (AR 396-99). Ultimately, Dr. Harris opined
that Petitioner is incapable of working, even in a low-stress job (but that varies). (AR 399).
In his Decision, the ALJ gave Dr. Harris’s opinions in these respects “little weight”
because, he wrote, “[w]hile Dr. Harris is a treating source, this opinion is not consistent with the
record as a whole which reveals nothing more than subjective complaints.” (AR 23). Petitioner

6

Of some interest, although Petition claims difficulties in such areas, Dr. Harris did not
report any symptoms of depression, bladder problems, confusion, loss of manual dexterity, poor
coordination, or speech difficulties. (AR 396).
MEMORANDUM DECISION AND ORDER - 25

takes issue with this, arguing that the ALJ “failed to provide the requisite clear and convincing
reasons for rejecting [Dr. Harris’s] opinion” and, “[i]n doing so, the ALJ improperly weighed the
medical evidence.” Pet.’s Brief, p. 13 (Docket No. 18). The Court has examined this criticism,
but after its own review, the Court is satisfied that the record supports the ALJ’s decision to
place little weight to these particular findings.
First, to the extent Dr. Harris definitively considered Petitioner disabled as of September
30, 2013, his opinion on the ultimate issue (within the meaning of the Social Security Act) is
neither conclusive nor binding upon the ALJ. See Rodriguez v. Bowen, 876 F.2d 759, 761 (9th
Cir. 1989); see also SSR 96-5p, available at 1996 WL 374183, *2 (the “final responsibility for
deciding [whether an individual is ‘disabled’ under the Social Security Act] . . . is reserved to the
Commissioner.”); 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1) (“We are responsible for making
the determination or decision about whether you meet the statutory definition of disability.”).
Second, Dr. Harris’s treatment notes over time do not neatly align with the physical
limitations he ultimately assigns to Petitioner in the “Multiple Sclerosis Medical Source
Statement.” It is true that there are references in his notes to Petitioner’s multiple sclerosis and
her presented symptoms. But whether Petitioner suffers from this impairment is not the pertinent
ultimate issue here. To be clear, the ALJ found in no uncertain terms that Petitioner’s multiple
sclerosis was “severe,” and that Petitioner’s residual functional capacity is negatively impacted.
See supra (citing (AR 20-24)). And, for the most part, Dr. Harris’s treatment notes reflect
Petitioner’s periodic subjective complaints of pain. However, largely absent from such notes are
any corresponding opinions or findings from Dr. Harris paralleling the opinions reached in the
“Multiple Sclerosis Medical Source Statement” as to Petitioner’s alleged functional limitations.
As noted above, the record (including from Dr. Harris) contains instances where Petitioner was

MEMORANDUM DECISION AND ORDER - 26

not in acute distress, had full strength in her body with normal tone, had intact neurological and
cognitive systems, and had no problems walking. See supra (citing (AR 298, 303-04, 307-08,
311, 314, 328, 344, 347, 361-62, 365-66, 369, 371-72)).
Third, an ALJ properly can reject “check-off reports that [do] not contain any explanation
of the bases of their conclusions.” See, e.g., Molina, 674 F.3d at 1111 (9th Cir. 2012); Crane v.
Shalala, 76 F.3d 251, 253 (9th Cir. 1996); see also Holohan v. Massanari, 246 F.3d 1195, 1202
(9th Cir. 2001) (observing, sensibly, that the regulations “give more weight to opinions that are
explained than to those that are not.”); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)
(ALJ may reject physician’s opinion if it is based “to a large extent” on a claimant’s self-reports
that have been properly discounted as not credible [(see infra)].”); Ellison v. Colvin, 2014 WL
4853126, *6 (D. Idaho 2014) (“When a physician relies on Petitioner’s subjective complaints,
which the ALJ properly discounted in an adverse credibility determination, that is a legally
sufficient reason on which the ALJ could properly rely to accord less weight to [physician’s]
opinion.”). Because Dr. Harris’s opinions in his “Multiple Sclerosis Medical Source Statement”
arguably appear to reflect Petitioner’s subjective complaints over time, the ALJ did not err in
calling its conclusions as to Petitioner’s physical abilities into question.
Third, Dr. Harris’s opinions drawn from the “Multiple Sclerosis Medical Source
Statement” do not exist in isolation. On July 11, 2013, medical consultant Wade Dickey, M.D.,
reviewed Petitioner’s medical records and opined that Petitioner could occasionally lift 20
pounds, frequently lift 10 pounds, stand/walk for two hours and sit for six hours in an eight-hour
day, with some postural limitations. (AR 79-81). According to Dr. Dickey, Petitioner was
capable of sedentary work with some limitations:

MEMORANDUM DECISION AND ORDER - 27

We have received your request for reconsideration. All prior evidence and any
newly submitted evidence in file has been thoroughly reviewed. Medical reports
indicate you are being treated for multiple sclerosis. There is no evidence of a severe
mental condition as a result. Your condition does not seriously affect[ ] your ability
to stand, walk, or use your arms or legs.
Your condition results in some limitations in your ability to perform work related
activities. We have determined that your condition is not severe enough to keep you
from work. We considered the medical and other information, your age and
education in determining how your condition affects your ability to work. We do not
have sufficient vocational information to determine whether you can perform any of
your past relevant work. However, based on the evidence in file, we have
determined that you can adjust to other seated types of work with limited walking,
standing, lifting, and carrying.
(AR 83). The ALJ afforded Dr. Dickey’s opinion “great weight, pointing out that it was more in
line with the balance of the medical record and Petitioner’s “relatively benign” examinations.
(AR 24). See Ruiz v. Colvin, 638 Fed. Appx. 604, 606 (9th Cir. 2016) (“The ALJ did not err in
giving the opinion evidence from State agency medical consultants greatest weight. . . . .
Although the State consultants never examined Ruiz, the ALJ found their opinions consistent
with the greater medical record, progress and treating notes, and Ruiz’s description of her daily
activities.”) (citing SSR 96-6p, available at 1996 WL 374180, *3 (ruling that opinion of State
agency medical consultant can be given more weight than that of treating source in appropriate
circumstances).
With all this in mind, there is no question that Petitioner suffers from an impairment
(acknowledged as “severe” by the ALJ) that impacts her ability to work; however, the ALJ
provided specific legitimate reasons for rejecting/questioning certain of Dr. Harris’s opinions.
Ultimately, Dr. Harris’s opinions were not given the weight Petitioner would have preferred;
however, such opinions clearly were considered in the context of the surrounding medical
record.

MEMORANDUM DECISION AND ORDER - 28

The Court’s duty here is not to resolve the conflicting opinions and ultimately decide
whether Petitioner is once-and-for-all disabled as that term is used within the Social Security
regulations. Rather, the Court must decide whether the ALJ’s decision that Petitioner is not
disabled is supported by the record. In this record, there are conflicting medical opinions,
testimony, and accounts that inform the ALJ’s decisions on how to consider Dr. Harris’s
opinions. His decision to discount such opinions is supported by clear and convincing, specific,
and legitimate reasons for doing so. Hence, because the evidence can reasonably support the
ALJ’s conclusions in these respects, the Court will not substitute its judgment for that of the
ALJ’s even if the Court were to have a different view. See Richardson, 402 U.S. at 401; Matney,
981 F.2d at 1019.
3.

Other Work in the National Economy

Petitioner contends that the ALJ posed a hypothetical question to the vocational expert
that presumed an incorrect RFC, insofar as it was not consistent with either the Petitioner’s own
testimony, or the limitations reflected in Dr. Harris’s opinions. See Pet.’s Brief, pp. 16-18
(Docket No. 18). The Court agrees with Respondent that this argument “is entirely contingent
on the success of [Petitioner’s] previous arguments, namely [that] the ALJ should have afforded
more weight to her allegations and Dr. Harris’s opinion.” Resp.’s Brief, p. 11 (Docket No. 19).
As stated above, the ALJ reasonably questioned Petitioner’s allegations and Dr. Harris’s
opinions when arriving upon the RFC used in the hypothetical to the vocational expert. See
supra. As such, the ALJ did not pose an improper hypothetical question to the vocational expert.
See, e.g., Sieler v. Berryhill, 2017 WL 2676491, *5 (E.D. Wash. 2017) (“The RFC determination
and the VE hypothetical took into account those limitations supported by the record that did not

MEMORANDUM DECISION AND ORDER - 29

depend on the Plaintiff’s subjective complaints that lacked credibility.”) (citing Bayliss v.
Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005)).
4.

The Appeals Council’s Evaluation of New Evidence

As to situations involving new evidence submitted to the Appeals Council for the first
time, 20 C.F.R. § 404.970(b) states:
If new and material evidence is submitted, the Appeals Council . . . shall evaluate the
entire record including the new and material evidence submitted if it relates to the
period on or before the date of the administrative law judge hearing decision. It will
then review the case if it finds that the administrative law judge’s action, findings,
or conclusion is contrary to the weight of the evidence currently in the record.
Following the ALJ’s September 9, 2014 Decision, Petitioner submitted a follow-up letter
from Dr. Harris for the Appeals Council’s consideration. (AR 400). In denying Petitioner’s
Request for Review, the Appeals Council stated:
In looking at your case, we considered the reasons that you disagree with the
decision and the additional evidence listed on the enclosed Order of the Appeals
Council, with the entire record. The additional evidence includes a narrative letter
from Wade S. Harris, M.D., dated November 20, 2014 (1 page). We considered
whether the Administrative Law Judge’s action, findings, or conclusion is contrary
to the weight of the evidence currently of record. We found that this information
does not provide a basis for changing the Administrative Law Judge’s decision.
(AR 2) (emphasis added). Petitioner argues that this is not enough. See Pet.’s Brief, p. 19
(“Despite specific acknowledgment of this new evidence, however, the Appeals Council failed to
properly evaluate the new evidence as required.”).
The Court disagrees. “[T]he Appeals council only is required to ‘consider’ and ‘evaluate’
the additional evidence. No mention is made of any requirement that the Appeals Council
explain its decision.” Woodsum v. Astrue, 711 F. Supp. 2d 1239, 1246 (W.D. Wash. 2010)
(citing and adopting Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992) and Hollar v.

MEMORANDUM DECISION AND ORDER - 30

Comm’r Soc. Sec. Admin., 1999 WL 753999, *1 (4th Cir. 1999)). The Appeals Council supplied
the necessary information in this respect. Regardless, the Court finds that Dr. Harris’s
November 20, 2014 letter essentially mirrors the opinions reflected in his September 30, 2013
“Multiple Sclerosis Medical Source Statement.” In other words, this letter supplements only be
repeating what is already in the record – evidence that had already been considered by the ALJ.
Therefore, there is no basis to remand the action in this respect.
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences
from facts and determining credibility. Allen, 749 F.2d at 579; Vincent ex. rel. Vincent, 739 F.2d
at 1394; Sample, 694 F.2d at 642. If the evidence is susceptible to more than one rational
interpretation, one of which is the ALJ’s, a reviewing court may not substitute its interpretation
for that of the ALJ. Key, 754 f.2d at 1549.
The Court concludes that the evidence relied upon by the ALJ – coupled with the
additional evidence submitted post-hearing – can reasonably and rationally support the ALJ’s
conclusions, despite the fact that such evidence may be susceptible to a different interpretation.
Accordingly, the ALJ’s decisions as to Petitioner’s disability claim were based on proper legal
standards and supported by substantial evidence. Therefore, the Commissioner’s determination
that Petitioner is not disabled within the meaning of the Social Security Act is supported by
substantial evidence in the record and is based upon an application of proper legal standards.
The Commissioner’s decision is affirmed.
///
///

MEMORANDUM DECISION AND ORDER - 31

V. ORDER
Based on the foregoing, the decision of the Commissioner is AFFIRMED and this action
is DISMISSED in its entirety, with prejudice.
DATED: September 29, 2017

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 32